‘Victoria Gowri Case Prime Example Of What Can Happen When Process Collapses’: Justice AP Shah On Need For Transparent & Accountable Collegium

“The Victoria Gowri case is a prime example of what can happen when this process collapses. She embodied hate speech at its height. I personally watched her videos and I was terribly shocked…”

As Justice Shah commenced with his speech, he provided a brief overview of the events leading to the creation of the collegium. He said that the Constituent Assembly debates indicate that it had persistently rooted for an independent judiciary to ensure the rights of the citizens and to uphold rule of law. The process envisaged by the Assembly was one where appointments are made by the executive, but only after consulting the judiciary. Justice Shah pointed out, both Pandit Jawaharlal Nehru and Dr. B.R. Ambedkar was skeptical to leave the process of appointment open to the executive and the legislature. In fact, he stated, Nehru had said that persons with highest integrity and with the spine to stand up against the executive were needed in the judiciary. By and large, the view of the Chief Justice would take precedence. However, the process witnessed a drastic change during the tenure of Indira Gandhi. Justice Shah emphasised that Ms. Gandhi’s Prime Ministership was marked by punitive transfer of judges and supersessions. The First Judges’ case, which held that the advice of the Chief Justice of India regarding appointments was not binding on the President, was a major blow to judicial independence. Justice Shah recalled that the Government made good use of the power of appointment legitimised by the Apex Court. 

According to him, the Second Judges’ case, to which the collegium owes its origin, was a ‘response to the situation where the executive has practically hijacked the appointment system’. The judgment restored primacy of the judiciary in the process of appointment of judges to Constitutional courts. Justice Shah noted that the judgment ‘enhanced institutional independence and institutional autonomy’.

Justice Shah flagged some issues arising out of the extant collegium system. The foremost being the fact that it lacks a democratic mechanism. The opacity and the non-transparency makes it worse. He added that being a part of the collegium would also mean that the principle work of adjudication would suffer to a certain extent. It was also pointed out by Justice Shah that the collegium operates in an informal manner without keeping any minutes of the meetings. Another issue that was raised by the Judge was the lack in conducting proper investigation of the candidates, their body of work, standing, integrity. He said, “there is hardly any investigation”. In this context he referred to the appointment of Justice Gowri.

Bias, another shortcoming of the collegium that was highlighted by Justice Shah.

“The problem with the collegium is that they operate with a high degree of bias...It is the same degree of bias that has remained unchanged...To put it another way the rituals are the same only the priests have changed.”

Identifying nepotism and favouritism as the evils of bias, he went on to add how it encourages self-replication by the judiciary.

“Bias reinforces other characteristics like nepotism, favouritism. The fact is that many judges are related to former judges...Consequently, the system comprises judges mainly from the upper caste and the middle class…Effectively, the members of the collegium are basically appointing more people like themselves. So, every successive collegium is practically a mirror of its predecessor.”

He also noted that though there are talks of diversity, there is no effort in that regard

“You talk about only in silos and quotas. There is no real effort to explore how to holistically bring diversity in the system.”

Talking about Government’s interference in the appointment process, Justice Shah stated -

“This Govt. has infiltrated the collegium system and I completely disagree with the suggestion that the Law Minister can be a part of the collegium discussion. It is the most dangerous in the way things are happening today.”

According to him, unlike yesteryears when the Government would once in a while favour an individual in the appointment process, the present trend is to encourage appointment of individuals who share the same ideology as that of the present day Government.

He added -

“On one hand, the Govt is interfering by obstructing appointments, sitting on files, manipulating the system and on the other, in public forums, the Law Minister and the Vice President attack the collegium system.”

Justice Shah concluded by providing suggestions to improve the existing collegium system. His first suggestion was to make the appointment process transparent. He indicated that the publication of the names of the recommended judges should be published; minutes of the collegium meetings must be recorded; all meetings must be formal and minuted; some confidential information can be there which can be redacted. He also suggested that recommendations can come from the Government, but the same should be indicated in the minutes of the meeting. He also encouraged following the rule of coming up with an annual report, that, at present, is followed in the United Kingdom by the Commission responsible for making judicial appointments. Justice Shah was also of the opinion that in order to get better judges, the rule of seniority can be relaxed, if required. However, he clarified that the Chief Justice of India should always be appointed on the basis of seniority. His final suggestion was that High Court and Supreme Court Collegium should have a separate Secretariat.

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